The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), amendments to §92.2, concerning definitions; §92.3, concerning types of assisted living facilities; §92.11, concerning criteria for licensing; §92.41, concerning standards for type A, type B, and type E assisted living facilities; §92.53, concerning standards for certified Alzheimer's assisted living facilities; and the repeal of §92.71, concerning introduction and application: type E facilities; and §92.72, concerning general requirements: type E facilities, in Chapter 92, Licensing Standards for Assisted Living Facilities.

BACKGROUND AND PURPOSE

House Bill (HB) 216, 81st Legislature, Regular Session, 2009, amended the definitions of "assisted living facility" and "personal care services" in Texas Health and Safety Code §247.002. In response, DADS proposes to amend the definition of "personal care services" in §92.2 to exclude the activities of medication administration and assistance with or supervision of medication from that definition. In addition, DADS proposes to amend the description of an assisted living facility in §92.11(a)(1) by adding administration of medication as a service that requires a facility to be licensed as an assisted living facility and by adding assistance with or supervision of the administration of medication as a service that may be provided by an assisted living facility.

HB 216 also repealed §247.030, regarding facilities that provide only medication supervision and general supervision of residents' welfare, known as Type E facilities. In response, DADS proposes to delete references to Type E facilities in §§92.2, 92.3, 92.41 and 92.53, and to repeal §92.71 and §92.72, which contain requirements related to Type E facilities.

DADS proposes additional amendments to §92.41(e) to prohibit an assisted living facility from using its own employees to provide nursing services other than personal care services or the administration of medication. This amendment is in response to Texas Attorney General Opinion JC-0072. Other amendments update the agency name from the Department of Human Services to DADS and update section references.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §92.2 revises the definition of "personal care services" by deleting "the administration of medication by a person licensed to administer medications or the assistance with or supervision of medication," as authorized by HSC §247.002. An additional amendment updates a section title reference.

The proposed amendment to §92.3 deletes references to Type E facilities based on HB 216 amendments to HSC Chapter 247, eliminating Type E facilities.

The proposed amendment to §92.11 revises the description of an assisted living facility by adding administration of medication as a service that requires a facility to be licensed as an assisted living facility and by adding assistance with or supervision of the administration of medication as a service that may be provided in an assisted living facility.

The proposed amendment to §92.41 deletes references to Type E facilities, updates cross- references to other sections in Chapter 92, and deletes the word "nursing" in §92.41(a)(4)(D)(ii) to clarify that an assisted living facility may not use its own employees to provide nursing services other than personal care services or the administration of medication. The proposed amendment also adds language in §92.41(e) to clarify that the facility must not admit or retain a resident who cannot secure nursing services from an outside resource, if they are needed.

The proposed amendment to §92.53 deletes references to Type E facilities and changes references to the Texas Department of Human Services to DADS to reflect a change in the agency name.

The proposed repeal of §92.71 and §92.72 deletes sections related to Type E facilities.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first year the proposed amendments and repeal are in effect, there are foreseeable implications relating to costs or revenues of state government.

The effect on state government for the first two years the proposed amendments and repeal are in effect is an estimated $7,135 loss in revenue per year from fees collected due to elimination of type E facilities. Facilities are licensed under a two-year license; therefore, we can project the loss for Fiscal Years (FY) 1 and 2. However, losses are difficult to project beyond FY2, as facilities may choose to pursue another type of license with DADS.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed amendments and repeal will not have an adverse economic effect on small businesses or micro-businesses, because there is no cost associated with the proposed rules.

PUBLIC BENEFIT AND COSTS

Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has determined that, for each year of the first five years the proposed rules are in effect, the public benefit expected as a result of enforcing the proposed rules is that some facilities currently licensed as Type E facilities will no longer be regulated by DADS, nor will they have to comply with the licensing standards in 40 Texas Administrative Code, Chapter 92, for assisted living facilities. In addition, proposed amendments will align the rules with Texas Attorney General Opinion JC- 0072 to prohibit an assisted living facility from using its own employees to provide nursing services other than personal care services or the administration of medication.

Ms. Durden anticipates that there will not be an economic cost to persons who are required to comply with the proposed rules. The proposed rules will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jennifer Morrison at (512) 438-4624 in DADS' Regulatory Services. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-9R023, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, TX 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us . To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register . The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 9R023" in the subject line.

STATUTORY AUTHORITY

The amendments are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Health and Safety Code, Chapter 247, which authorizes DADS to license and regulate assisted living facilities.

The amendments implement Texas Government Code, §531.0055; Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§247.001 - 247.069.